David A. Plymyer: Political, Social & Random Commentary

No leadership or political courage evident during the debate over control of the BPD.

The things going on at the moment regarding control of the Baltimore Police Department (BPD) are beyond comprehension. They are a reflection of a complete lack of leadership from the mayor and a complete lack of spine from members of the city council. There is one thing not absent on the part of city officials in this situation, and that is chutzpah.

Members of the Baltimore City Council are clamoring for more control of the Baltimore Police Department (BPD) even though they have abrogated the responsibility that they do have for a critical component of the BPD – its disciplinary system. Council members are urging members of the General Assembly to pass HB 1054, which would transfer operational control of the BPD from the state to the city.

Members of the council are seeking this additional authority at the same time that the mayor is asking the General Assembly to enact a statute that gets around the unwillingness of the city council to pass an ordinance allowing civilians to serve as members of police hearing boards over the objection of the police union. Basically, the city council wants more power to boss around the Police Commissioner but has more or less admitted it lacks the guts to deal with his employees. In other words, the council only wants the power to do the easy stuff.

HB 1504 would have no effect on labor relations and collective bargaining between the city and BPD employees over the terms and conditions of employment. The city council has sufficient control in that area to place civilians on hearing boards. In the aftermath of the Freddie Gray tragedy and the Department of Justice (DOJ) report concluding the process employed by the BPD to maintain the discipline of its police officers was ineffective the mayor and many members of the city council stated during their campaigns that they would do everything possible to place civilian members on the hearing boards convened to adjudicate disciplinary charges against BPD officers.

The mayor and members of the council stated that placing civilians the boards would improve discipline and restore the faith of city residents in the process. The city council approved a consent decree with the DOJ that calls for putting civilians on hearing boards.

The city council has it within its power to place civilians on police hearing powers as described in an op ed that I wrote last year published in The Baltimore Sun. The problem is that members of the council are afraid to exercise that power because doing so will alienate the Fraternal Order of Police (FOP). Question for the city council: How the hell do you have the nerve to ask for more power over the police department when you are unwilling to exercise the power that you already have in order do something about the department that you have committed yourself to do?

What makes this situation stranger – and even more pathetic – is that Mayor Catherine Pugh has been before the General Assembly urging members to pass SB 545/HB 1023. The bill, introduced by members of the Baltimore City delegation at the request of the mayor, is an attempt to get around the fact that city law currently requires the city to bargain with the FOP over the composition of hearing boards convened under the Law Enforcement Officers’ Bill of Rights (LEOBR) to adjudicate disciplinary charges against officers of the BPD. In other words she is asking the state to do something that the city lacks the guts to do for itself: Stand up to the FOP.

The composition of the boards has become a major issue because of the FOP’s reluctance to agree to allow civilians to serve as members of boards in the city. In the op ed described above I urged the city council to withdraw the subject of the composition of the hearing boards from the scope of collective bargaining which then would allow the council to make its own decision on who should sit on the hearing boards as provided under state law. If city officials want to put civilians on hearing boards, then put civilians on hearing boards.

Rather than ask the city council to change city law, however, Mayor Pugh went to the General Assembly to ask them to supersede city law with a statute prohibiting the city from submitting the subject of the composition of hearing boards to collective bargaining. It takes a lot of gall for the mayor just to ask the General Assembly to relieve her and the city council of the burden of taking on the FOP. When you add in the fact that members of the city council are simultaneously trying to persuade the General Assembly that they can be trusted with more control over the police department, however, her request is nothing less than ridiculous. I don’t think that point is lost on members of the General Assembly.

When the mayor began discussing what is now SB 545/HB 1023 a few months after my op ed was published I posted a comment to my blog in which I quoted a WBAL interview with Senator Bobby Zirkin during which he tried to convey the message in no uncertain terms that the city should solve its own problems over collective bargaining with the FOP. Senator Zirkin’s comments two weeks ago about SB545/HB1023 reported in a tweet from Sun reporter Ian Duncan indicate that his mind has not been changed, and Senator Zirkin is the chairman of the committee that will decide the fate of SB 545.

I hasten to add that the mayor does not seem to support HB 1504. She voiced concerns about transferring full operation control to the city similar to those raised in an op ed by former City Solicitor George Nilson. One of the things that Mr. Nilson was concerned about was that a change in the legal status of the department at this point in time could complicate or even disrupt the process of getting the consent decree with the DOJ approved and implemented. Maybe in her heart of hearts the mayor knows that the city council can’t be trusted with any more control over the BPD; there was some indication in his op ed that Mr. Nilson may feel the same way, and he speaks from experience.

In summary, we have the mayor and members of the city council pulling in opposite directions, with neither demonstrating any real vision, leadership or political courage. They do seem to concur in the matter of taking on the FOP over putting civilians on hearing boards; the mayor and council believe it is a good idea – if someone else does it. The city needs help, but it needs to learn to help itself as well, and part of that includes taking some political risks in the course of doing the hard work of governing.

If the indictment on Wednesday of seven officers of the BPD on federal racketeering charges demonstrates anything it demonstrates that there is plenty of work still to be done on achieving an acceptable level of discipline within the BPD. I am not saying that putting civilians on hearing boards is a panacea for all of the disciplinary problems – not even close. Indeed, I have my own doubts that it will make much difference at all, and there are plenty of other steps that must be taken. Regardless, the mayor and city council have committed themselves to the idea, and it would be encouraging to see them actually get one thing done intended to improve the quality of the BPD.

Incidentally, the indictment also helped set the tone for this post: It drives me nuts to read about members of the council blithering on about wanting more power to do truly important things like redrawing police district lines when it is obvious that there are serious issues that need to be tackled.

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As sort of an addendum to this post I am going to set forth the legal framework of description of the power of the city council over collective bargaining and the composition of police hearing boards. I have never heard city officials deny that the council has the power to put civilians on hearing boards, but nor have I heard them confirm it – they seem to want to ignore the issue. One problem has been that members of the media do not press the mayor or members of the city council on the point, perhaps because they are not fully aware of the law. In any event, here is my breakdown of the relevant law:

The BPD is governed by three different types of laws. The General Assembly enacts both “public general laws” of statewide applicability and “public local laws” applicable only to Baltimore. The city council enacts ordinances within the scope of the powers granted to it by the General Assembly.

The composition of hearing boards convened to adjudicate disciplinary charges against police officers across the state is the subject of a public general law, the LEOBR. The LEOBR was amended in 2016 to allow the city or any other local government to pass an ordinance requiring that there be up to two civilian members on a hearing board, appointed by the police chief. The ordinance can provide that the civilians be either voting or non-voting members. [State Code, Public Safety Article, § 3-107.]

Under the LEOBR a local government can either pass an ordinance dictating the method of selecting the members of a hearing board or it can make the method of selection subject to collective bargaining and binding arbitration; the LEOBR makes it clear that collective bargaining of the method of selection is not required: “A law enforcement agency or the agency’s superior government that has recognized and certified an exclusive collective bargaining representative MAY negotiate with the representative an alternative method of forming a hearing board . . . IF authorized by local law this paragraph [the paragraph authorizing negotiation of an alternative method of selection] is subject to binding arbitration.” [State Code, Public Safety Article, § 3-107(5).] (Emphasis added.)

The General Assembly has provided by public local law that, except as provided in that public law, the provisions of the Municipal Labor Relations Article of the Baltimore City Code enacted by the city council apply to labor relations and collective bargaining between the city and the uniformed and civilian employees of the BPD. [Code of Public Local Laws, § 16-8A(a).]

The public local enacted by the General Assembly for the city does not allow matters other than “direct compensation” from being submitted to binding arbitration if the city and the officers’ union are unable to reach agreement on the matters. “Direct compensation” specifically excludes issues pertaining to “disciplinary procedures, investigations and actions.” [Code of Public Local Laws, § 16-8A(b)(3).] In other words, even under current law, the FOP can negotiate with the Baltimore Police and Labor Commissioners over the method of selecting members of hearing boards but at the end of the day it is the city council that makes the final decision on the method of selection if the parties can’t agree.

As described above, the LEOBR does not require a local government to negotiate with its police employees over the method of selecting members of hearing boards. The decision whether or not to do so is governed by the law of the local government. Although the public local law enacted for Baltimore by the General Assembly requires the city to negotiate with the police union about issues of direct compensation, nothing in that public local law takes away the authority of the city council under the city charter and code to carve out certain exclusive management rights not involving direct compensation in order to exclude those management rights from the scope of collective bargaining

The city charter gives the city council broad power to define the rights of employers and employees vis a vis collective bargaining. [City Charter, § 55(a).] Enacting pursuant to that power the city council has carved out certain exclusive management (employer) rights. [Baltimore City Code, Art. 12, § 3-2(a).] The council can expand those exclusive management rights to include the right to determine the method of selecting members of hearing boards.

The most recent contracts between the city and the FOP expired on June 30, 2016. The parties have bargained for over a year about the method of selecting members of hearings without reaching an agreement. It is past time for the city council to act to resolve the impasse.

The council needs to pass one ordinance removing the method of selecting members of hearing boards from the scope of collecting bargaining and another ordinance that sets forth the method of selection as a matter of law. What is the FOP going to do? If the FOP argues state law applies then it is absolutely clear that they have no right under state law to submit the method of selection to binding arbitration. If the FOP argues city law applies then it is absolutely clear that the city council has the right under the city charter to limit the scope of collective bargaining by establishing exclusive employer rights. Both arguments lead to the same result: The city council makes the final decision on the method of selection. The city council needs to stop dithering and get to it.

Here is the flaw in what I have proposed: It would require the mayor and city council to work together and to act decisively in the face of opposition from the FOP. That will never happen; the political courage simply isn’t there. The FOP continues to run the city. The tail wags the dog in Baltimore and nothing much has changed since my op ed on that subject was published in August 2015.